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Wednesday, July 27, 2011

A tenant renting property in the Willoughby Estates Homeowners' Association received a Demand for Rent from the HOA as a result of the landlord/owner owing the association almost $3,000. Not so unusual in today's market except this particular tenant was receiving a Section 8 rent subsidy.

While the tenant agreed to pay her portion of the rent ($275.00) to the HOA, the West Palm Beach Housing Authority refused to pay its portion ($1,509.00) as demanded by the association pursuant to Section 720.3085(8). The Housing Authority claimed it was exempt from the application of this statute. The association refused to take no for an answer and went to court.

On July 19th, the association was rewarded for its tenacity with an order requiring the West Palm Beach Housing Authority to tender its portion of the monthly rent to the association until the past due assessments, interest and other fees were paid off.

This is welcome news for associations who continue to use the statutory ability to collect rent from tenants in delinquent properties which was granted two years ago and further clarified in the 2011 Session. Interestingly enough, there was no mention in this case as to whether or not later passed amendments to the HOA Act applied to this community's declaration.

The short answer to the question of whether your postings on Social Media can impact your association's claim is: YES.

Let's take the scenario of your association suing its insurance company for breach of the insurance policy. It is fairly standard policy these days for the insurance company or its attorney to conduct an investigation of the claimants as a part of its evaluation of the value of the claim being made. Anything posted on websites that can be viewed by the public such as Facebook, MySpace, YouTube, Foursquare, LinkedIn, Twitter, etc. is fair game for an investigator to review.

In addition to individual directors and managers having all these Social Media accounts, more and more associations are setting up Social Media pages for their communities. These sites can be a wonderful way to create additional communication channels to foster greater community unity but some thought needs to be given to what is viewable and by whom.

If you haven't checked your privacy settings on these accounts in a while, it's time to do so especially with a claim pending. Make sure you know the people you accept into your circle or do some due diligence on them if you are networking.

What are investigators looking for? Usually anything to prove you are not a solid upstanding citizen. A "Social Intelligence" report prepared for these investigators will look for rascist remarks, pictures or comments concerning drug and alcohol use, displays of weapons or other illegal activity.

Think no one could be so silly as to make those comments or post those kinds of pictures? Think again and then scroll through your Newsfeed!

Before you say/post/transmit anyting in a digital (i.e. permanent) form or anything that can be converted into a digital form, please consider the consequences. The bottom line is that if there is information you would not want heard in open court on your Social Media sites, take them down while your case is pending or better yet, don't put them up there in the first place!

Thursday, July 21, 2011

Bill and Susan Raphan spent years in the Florida Condominium Ombudsman's Office listening to complaints from owners, offering assistance to battle-weary directors and trying to put out small brush fires before they became full blown conflagrations.

While they weren't able to cure every problem, they did find that often what was needed most was a patient set of ears and a sympathetic shoulder.

As community association lawyers we always hope that we can solve every problem that may confront a community. However, some problems do not readily lend themselves to legal resolution and, in fact, sometimes the involvement of an attorney can immediately change the dynamics of the conversation by putting one or both parties on guard.

If you have ever dealt with an association experiencing residents who hoard or harass, as well as those that believe there is manipulation of the election process or a host of other as yet unproven accusations, you know how frustrating and often ineffectual the legal process can be in those types of conflicts. Sometimes the actions fall just short of being actionable but are still troubling enough to hamper the quality of community life. Bill and Susan Raphan believe that they can help defuse these kinds of situations by being a neutral party with sufficient experience to render helpful advice.

The Raphans have long recognized this gap in servicing the needs of associations and have created a toll free hotline for board members and managers as a result.

Wednesday, July 20, 2011

In today's troubled economy it borders on blasphemy to even suggest letting a client go. It's hard enough bringing clients in the door let alone asking some of them to leave, right?

Most of us are very fortunate to work with great communities who appreciate what we do for them, follow the advice they pay us to give, pay their bills and treat our employees with courtesy and respect.

However, there is always a flip side. How many professionals that service community associations such as lawyers, accountants, managers, insurance agents, engineers and more have that handful of clients who make life a little harder for everybody involved?

Who are these troubled clients? Well, here a few red flags:

• Boards with internal strife who send conflicting messages and/or expect their professional advisors to take sides;

• Boards constantly under recall assault;

• Boards that are being run by one person alone despite having a full board in place;

• Boards that pay for opinions only to discard same and embark on dangerous courses of action;

• Boards that admit that they know they are doing wrong but just don't care;

• Boards who couldn't care less about changes in the law or educational offerings;

• Boards whose members communicate with your staff in a disparaging or demeaning manner;

• Boards who have sued many professional advisors in the past; and,

• Boards who have failed to pay many professional advisors in the past.

How many times do you read about a community doing everything wrong where an attorney or other professional advisor is listed as servicing that community and you wonder if the professional has endorsed or assisted in the bad behavior?

Just as communities can often tell when a professional advisor is not a good fit and they move on, professional advisors would be wise to do the same. If you are currently servicing a client who exhibits some of the red flags above, hopefully you have tried every tool in your arsenal to educate them and hopefully head off some potential problems. However, for those incorrigible clients that won't be persuaded by reason or education, ask yourself at what point will that troublesome client become a potential liability that is too much to bear.

Monday, July 18, 2011

The answer is yes if a proposed Miami Beach Ordinance passes and other cities follow suit.

We can all agree - recycling is good. However, should you have to pay a fine for your neighbor's inability to put a plastic water bottle in the correct trash bin?

This could become a reality for your community if a proposed ordinance, which would fine community associations up to $5,000 each time residents put their trash in the wrong container, is enacted.

Statewide, community associations are struggling to maintain services because far too many homeowners are unable to pay their association fees. If adopted, this measure could impose additional burdens on already financially strapped community associations.

The proposed Miami Beach ordinance would allow the city to fine community associations up to $5,000 each time the city finds recyclables in the trash, or vice versa. As we all know, fines incurred by the association are passed on to owners. Are you prepared to pay for your neighbor's Diet Coke can ending up in the wrong trash bin?

Specifically, the proposal would require city trash inspectors, as well as waste and recycling contractors, to notify the city if they find materials in the wrong trash bin.

Fines would be imposed on the following schedule:

● First violation: a warning or a fine up to $350;
● Second violation: a fine up to $500;
● Third violation: a fine up to $1,000; and
● Fourth & subsequent violations: up to $5,000.

Furthermore, after an association is found to be out of compliance twice, the waste and recycling contractors can refuse to collect the association's trash.

Tuesday, July 12, 2011

HB 59 sponsored by State Representative John Julien passed during this year's Legislative Session and is now law. The amendment to Section 48.031(7) of the Florida Statutes provides that a gated residential community, including a condominium, cooperative or homeowners' association, must grant unannounced entry into the community, including its common areas and common elements, to a process server attempting to serve process on a defendant or witness residing within or known to be inside the community.

Florida now joins Georgia and California as the third state to pass such a law.

What has your gated community done up until now in terms of persons attempting to serve process to those living within your walls and gates?

Did your guard call ahead or deny entry altogether? Did your concierge send an email or similarly send them on their way?

Even before this bill's passage, my advice to gated communities was not to call ahead to announce a process server's entry as that action could be construed as an obstruction of justice.

The alternative to service of process in person is service by publication but this is typically recognized as a last resort as judges tend to doubt that most defendants actually see such published notices. With the amount of foreclosures and other litigation taking place in Florida these days, it's not surprising that process servers and the clients they represent were clamoring for greater access to do their jobs.

When this bill was first proposed at the beginning of the Session last March, the bill contained language which would have allowed process servers access to limited common elements as well. That would have presented a signficant problem for some communities where limited common elements like elevators open directly into a resident's unit. Fortunately, my group the Community Advocacy Network (CAN) was given the opportunity to provide our input and we advised Rep. Julien of this issue and the language was ultimately removed.

Rep. Julien was yet another freshman legislator who passed significant legislation in his first term. Prior to serving in the Florida House, he was a North Miami Beach Council member and managed the process serving company he owns.

Sunday, July 10, 2011

There are certain rules that every community should have in place such as a rule regarding the official location for posting notices, a rule regarding hurricane shutters and a rule regarding participation at meetings. Perhaps no rule is more critical than a rule outlining how the inspection of the association's governing documents shall be conducted.

If you have ever been confronted with an inspection request for an incredibly large amount of documents going back 20 years from a person who finished reviewing many of the same documents the previous month, you will realize the importance of having a reasonable inspection policy in place prior to receiving that request.

It is important to remember that a reasonable document inspection policy can benefit both the board and the owners. It takes away any guesswork and possibly any games that future boards and owners may wish to play.

So what should your community consider having in your Document Inspection Rules and Regulations? Following are some suggestions:

● A reiteration of the statutory requirement that inspection requests be made in writing;

● A requirement that the request be sufficiently detailed to allow the association to retrieve the records requested. Catch-all phrases like "all" or "since the beginning of time" do not allow the association to easily comply within the statutory 10-day time period to produce the documents before penalties ensue;

● A limit on the numer of times any particular owner can inspect the association's records each calendar month. Is three times a month enough? How about four? The point is that if your community is large, there are only so many hours in the day and days in the week to accommodate everyone's requests;

● Identify which hours are available for inspections. A board expecting document inspections to only take place during a narrow one-hour period is not reasonable; neither is an owner expecting to inspect documents at midnight. Pick a time frame that makes sense for all;

● Understand that some owners only want to look at the documents and others want to copy them as well. Make it easy for those wishing to copy the documents to do so. Allowing owners to bring their own scanners and/or use a smartphone to snap a picture of the document they wish to review makes sense and cuts down on their costs and the association's time;

● Put a limit on the number of times the same document can be inspected in a one month period to avoid nuisance inspection requests. Since owners can obtain copies as discussed above, it is better to make such a copy which allows him or her to review the document as many times as needed in the comfort of their own home rather than continuing to go back to inspect same over and over; and

● Keep an inspection log of who made the request, which documents were inspected, which documents were copied and in what manner, the date, location and time of the inspection and all persons present during the inspection.

The most important item for boards and managers to remember is that the association's governing documents belong to the members. Reasonable inspections of those documents should be encouraged rather than discouraged.

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This blog is intended for general informational purposes only and is not intended to offer legal advice in any form whatsoever. Blog readers are urged to consult their own legal counsel to obtain specific legal advice. The blog author reserves the right to answer or decline to answer any comments. Any answers given to blog comments do not constitute legal advice nor do they create an attorney-client relationship. Offensive or defamatory comments will be removed.